There were 3 dissenting votes on an "en banc" panel of 11 judges. Here's a PDF of today's order. The dissenting opinion, from O'Scannlain, Bybee, and Bea said:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc

IIRC the issue was whether 50% + 1 of the vote was sufficient to amend the State Constitution WRT a prohibition on individual rights.

The argument wasn't about gay marriage, really, and while many people didn't like the result, the ruling itself would not have been particularly controversial had the proposition not involved a hot-button issue for so many.

Hawk update: One of them was trying to walk along the edge of the nest and when it shifted he lost his footing and he disappeared from view. I assume he was able to glide successfully somewhere but the launch definitely didn't look intentional.

Seeing as the Mormons were persecuted and hounded (and I do believe there was violence involved in it all) because of MARRIAGE, primarily, the notion that Mormons are going to suddenly decide that it's a matter of constitutional "rights" and protections is slim to none.

How could a thinking person expect any different considering their history?

In the case of Mormons and polygamy, the Constitution is actually, and clearly, on the side of proactively protecting religious belief.

In fact, the Mormons had a case at all.

Gays don't on this. Sorry, Andy. But the notion of "equality" in this ignores that some people are apparently equal and other people are clearly not, and this is why SSM advocates never stop explaining that SSM will not, CAN not, end up opening everyone else to that "equality."

All there is, is some nebulous interpretation of a later amendment to the constitution that has to be said to imply no limitations on marriage contracts... which there either *are* or there are *not*, no? Try to explain why *other* limitations are legitimate, then.

The Mormons, on the other hand, had the weight of the 1st Amendment, and they lost. Apparently "one man, one woman" was so compelling that it trumped the first iterated "Right" in the Bill of Rights.

It can't because a people group look at the claim that it's a matter of Rights and see whiny children having a fight their church had a century ago, with far more basis, and no success.

Make the argument!

If the legal definition of marriage is changed by asserting that the constitution prohibits rules over who can marry, explain why that prohibition doesn't apply to all restrictions instead of just your pet one.

If restrictions are legitimate, then the definition of civil marriage can be changed by passing laws with popular support that retain some restrictions while removing others.

"Andy R exclaimed: You're going to keep hearing from us until we get equality in all 50 states."

The gay marriage issue is an anomaly related to the AIDS epidemic. There was panic over the matter of promiscuity. Gays got interested in marriage as a way to try to change the male tendency for promiscuity. It hasn't really affected it. When AIDS fades away, like syphilis did centuries ago, the interest in gay marriage will fade. I don't really care but see no reason to turn human history upside down for a small fraction of the population. It has nothing to do with civil rights.

Andy: It's not going to be hard to convince people to side with the gays over the Mormons when it comes to equality.

Actually, if everyone tries to convince people like you, it will be well nigh impossible. Calling people "bigots" is not an argument. Making fun of religion is not persuasive. Even though I favor gay marriage, every time you write, I feel like reversing myself.

if this is what "silencing the conversation" sounds like, i'd hate to hear things get talky. this subject has been discussed to death and every law attempting to restrict gay citizens from marriage equality that has been challenged in the courts has been struck down as unconstitutional. how much more 'conversation' is necessary ?

Actually, he is. The gay mafia have used this exact tactic since the beginning of this fight, and it's gotten them this far. Why should they shut up? At least when they do spew this BS, they're being honest.

I'm sorry the truth about how militant gays feel is uncomfortable for some people.

For Andy's sake, let's revisit the Mormon Church's official statement on homosexuality, and see if he can point to the hateful parts:

"While we disagree with the Human Rights Campaign on many fundamentals, we also share some common ground. This past week we have all witnessed tragic deaths across the country as a result of bullying or intimidation of gay young men. We join our voice with others in unreserved condemnation of acts of cruelty or attempts to belittle or mock any group or individual that is different – whether those differences arise from race, religion, mental challenges, social status, sexual orientation or for any other reason. Such actions simply have no place in our society."

"This Church has felt the bitter sting of persecution and marginalization early in our history, when we were too few in numbers to adequately protect ourselves and when society’s leaders often seemed disinclined to help. Our parents, young adults, teens and children should therefore, of all people, be especially sensitive to the vulnerable in society and be willing to speak out against bullying or intimidation whenever it occurs, including unkindness toward those who are attracted to others of the same sex. This is particularly so in our own Latter-day Saint congregations. Each Latter-day Saint family and individual should carefully consider whether their attitudes and actions toward others properly reflect Jesus Christ’s second great commandment - to love one another."

"As a church, our doctrinal position is clear: any sexual activity outside of marriage is wrong, and we define marriage as between a man and a woman. However, that should never, ever be used as justification for unkindness. Jesus Christ, whom we follow, was clear in His condemnation of sexual immorality, but never cruel. His interest was always to lift the individual, never to tear down."

"Further, while the Church is strongly on the record as opposing same-sex marriage, it has openly supported other rights for gays and lesbians such as protections in housing or employment."

"The Church’s doctrine is based on love. We believe that our purpose in life is to learn, grow and develop, and that God’s unreserved love enables each of us to reach our potential. None of us is limited by our feelings or inclinations. Ultimately, we are free to act for ourselves."

And here are the closing paragraphs, again for Andy's consumption and criticism:

"Obviously, some will disagree with us. We hope that any disagreement will be based on a full understanding of our position and not on distortion or selective interpretation. The Church will continue to speak out to ensure its position is accurately understood."

"God’s universal fatherhood and love charges each of us with an innate and reverent acknowledgement of our shared human dignity. We are to love one another. We are to treat each other with respect as brothers and sisters and fellow children of God, no matter how much we may differ from one another."

"If a church put out a statement saying that black people should not have sex, would that be bigotry?"

Yes.

And also, irrelevant.

It's not a question of "is this bigotry" it's a question of "is this a freedom (to be a bigot) guaranteed by the constitution."

In any case, the Mormons did not have a more restrictive understanding of marriage than public sentiment would allow, it had a far FAR more expansive understanding of marriage. Certainly a mormon fellow could have only one wife, but church doctrine was that polygamy was proper (or even somewhat required, by some accounts.)

That more expansive definition of marriage, even based on a clear doctrinal conviction (rather than a simple "but I want to,") should have been upheld by the first amendment without hardly a second thought.

It wasn't.

The precedent set puts a pretty kibosh to the notion that *even* a clear Constitutional basis is enough to win the day over whatever necessity to limit marriage exists.

And Mormons even had that clear Constitutional basis where gays do not.

Either argument... "equal rights" or "hey, you're a bigot" are unlikely to win favor from people who had to flee to the armpit of UTAH to escape persecution and then were forced to abandon an important part of their constitutionally guaranteed religious freedom in the end.

(By many accounts institutionalized polygamy is incredibly BAD, for the girls and absolutely for the boys. I'm not making arguments about if it's a healthy social construct or not.)

In a democracy, shouldn't the people have a say in redefining what is a fundamental part of our civilization?

Or maybe we should leave it up to our betters to determine what marriage is and how large a soda we should be allowed to consume. Maybe they can redefine citizen to something more suitable, like subject.